The dismissal of an employee who had refused to take an oath out of religious conviction was deemed abusive by the Court of Cassation. How far can an employer use the principle of secularism in the company to sanction these employees?
November 2007. An employee of the RATP must take an oath to pass from the status of the trainee to that of permanent employee: “I swear and promise to perform my duties well and faithfully and to observe in all the duties imposed on me. “. She does not wish to pronounce this commitment in these terms on the grounds that her Christian faith prevents her from swearing and therefore proposes an alternative formula from her employer. Net refusal of the latter who proceeds to dismissal for serious misconduct.
Respect for freedom of conscience
July 2021. The Court of Cassation has just ruled this unfair dismissal. In its decision, the supreme court argues that respect for freedom of conscience “requires allowing a person who takes an oath to substitute for the formula” I swear “an equivalent formula of solemn commitment”, such as “I solemnly promise ”.
The Court of Cassation ordered RATP to pay compensation to the dismissed employee but did not condemn RATP for discrimination, considering that the company had not decided on the dismissal because of the religious beliefs of the employee.
This decision raises the question of the place of religious conviction in business, at a time when the religious fact is progressing in business, according to the latest barometer of the Observatory of Religious Fact in Business (OFRE) and the Montaigne Institute, published in early May 2021. According to these figures, two-thirds of managers observe, regularly or occasionally, religious facts at work, against 22% in 2012. How to reconcile respect for the beliefs of employees and the principle of secularism in the company?
What does the law provide?
An employer cannot prohibit his employee from having a religious belief or use it to sanction or discriminate against him, specifies the Labor Code. In other words, religious faith must not be a reason for rejecting an application during a job interview and cannot constitute a reason for dismissal.
On the other hand, the right to manifest one’s religion in the workplace can be regulated if it is justified by the nature of the employee’s activity (contact with the public, safety or health rules, etc.). These elements must be specified in the company’s internal regulations.
“The internal regulations may contain provisions inscribing the principle of neutrality and restricting the expression of the convictions of employees if these restrictions are justified by the exercise of other fundamental rights and freedoms or by the requirements of the proper functioning of the company and if they are proportionate to the desired goal ”, we can read in the Labor Code.
What is allowed
Employees can wear clothing or a religious symbol (jewelry, etc.) at their workplace, provided that it is compatible with the safety and health rules related to the position held (compulsory protective equipment, etc.).
The employee can request a religious holiday or a schedule adjustment related to the practice of his religion. But the employer is entitled to refuse.
The employee can pray at his workplace during his break time. However, his employer is entitled to prohibit prayer if it takes place during working time or disrupts the work of other employees.
What is prohibited
The law of October 11, 2010, prohibits the concealment of the face in public space. Employees are therefore not authorized to cover their faces (balaclava, full veil, etc.) if they work in a place open to the public (commerce, leisure area, bank, train station, etc.) or in an organization responsible for public service (private clinic, primary health insurance fund). This ban does not apply to employees working in a company without contact with the public.
An employee cannot refuse to carry out an assignment for which he was hired on the grounds that his religion forbids him to do so. Nor can he avoid compulsory medical examinations for religious reasons.
Finally, any activity of religious proselytizing in a company is punishable by the employer.
Also published on Medium.